Drug laws go bust

By
Reverend Damuzi, Dana Larsen and Amanda Stewart
on July 1, 1998

Vancouver cops guiltily guarding Hemp BC during their latest raid.The forces of freedom and oppression battle it out for the mighty marijuana plant.
In recent months, a plague of police raids and busts have been spreading the disease of oppression across Canada. The only cure for this social ill is full legalization of the healing herb, marijuana. With this in mind, many hemp store owners have been attacking the sickness at its source, making constitutional appeals of marijuana laws. Others, like growers and distributors, have been fighting any way they can. Even though it isn’t always easy getting the patient to take its medicine, there have been some victories for cannabis crusaders.

Invalid Warrants

Perhaps one of the most telling of tactics used by pernicious police officers seeking to oppress the cannabis community is the invalid warrant. Police seem to think that search warrants are like blank cheques, that they are for anything the police want, regardless of what is already written on them.

Often search warrants are invalid because they cite a section of law that is defunct, like Section 462.2, as it pertains to literature, in Ontario. Sometimes search warrants simply have the wrong address or owner listed on them, like the recent raid on Hemp BC, the Cannabis Caf? and Cannabis Canada.

In fact, it seems that every time the police have made a hemp store raid in the last few months, there has been some problem with the search warrant. Sometimes one wonders why police even bother going to the trouble of getting a warrant at all.

At about 7pm on April 30, Vancouver Police executed a raid on Cannabis Canada magazine (now Canmnabis Culture), Hemp BC and the Cannabis Caf?.

The police came by the Cannabis Canada office at 7pm, clearly expecting the CC staff to have all gone home. It was only our luck that one tireless employee was working late that night, otherwise the police would have smashed down the front door and likely seized everything in the office.

The police clearly intended to seize all of the Cannabis Canada production computers and materials, and to put our magazine completely out of business. They were thwarted by the timely intervention by phone of lawyer John Conroy, who explained to police that seizing the production computers went far beyond the bounds of their warrant.

The police nevertheless seized 3 computers frm our office, containing staff payroll, advertisers and distributors, and other such material. They also seized paper copies of our financial records, payroll and tax remittance forms. Subscriber records are on a different machine and were not seized.

The police also smashed in the door to our stockroom, and took about $10,000 in mail-order merchandise. They also dismantled and damaged part of our phone system.

The police search warrants were actually invalid in a number of ways. The warrants only listed Hemp BC, and made no mention at all of Cannabis Canada. Although both Cannabis Canada and Hemp BC were founded by Marc Emery, they are completely separate businesses, and Hemp BC is no longer owned by Marc Emery. Thus all of the search and seizure of Cannabis Canada materials was invalid.

The police claimed that the raid on Cannabis Canada, and the simultaneous raids on Hemp BC and the Cannabis Caf?, were only to find evidence backing up their earlier charges against Marc Emery. Yet the police chose to try and enter the Cannabis Canada office after hours, rather than just come during the day when they wouldn’t have to break open doors and steal computers to find what they wanted.

The police raid on Cannabis Canada was completely unjustified from a legal and moral point of view, and is a serious threat to freedom of the press in Canada.

While police were hauling computers down the stairs at Cannabis Canada, they were also a few blocks away, raiding Sister Icee’s Hemp BC and the Cannabis Caf?.
A half dozen cops guarded the entrance to Hemp BC while angry locals milled on the sidewalk, defiantly smoking joints and telling the police they should be ashamed of themselves.

Hemp BC lost about $15,000 in merchandise and a $4,000 computer during the “search”. Adam Patterson, then owner of the Cannabis Caf?, was photographed and searched during the raid, along with the one employee on staff. Police seized a number of glass pipes from the Caf?, as well as a large wooden sculpture and hemp necklaces and pendants from a display case. They also broke down a door into a dry food storage area, even though a key was on the wall.

The warrants (the same ones used at Cannabis Canada) listed Marc Emery as the owner of Hemp BC, even though it is public knowledge Emery sold Hemp BC to Sister Icee in early March. Vancouver City Hall was well aware of the sale of the business, has copies of the transaction contracts, and even had new owner Sister Icee come down to sign forms agreeing to certain conditions before she would be issued a business license. Yet City Hall officials told Vancouver Police that Marc Emery was indeed still the owner, their misinformation justifying the raid.

Hemp BC and the Cannabis Caf? have asked for $1,000,000 in compensation to be paid to them by City Hall, as a result of City Hall’s general harassment, especially in regards to misinforming the police. Sister Icee and her lawyer believe Hemp BC and the Cannabis Caf? stand an excellent chance of winning a court case against the city, and feel it is important to aggressively defend her to do business in Vancouver.

Packing up the CC office into a big truckLaying them on thick

In our last issue of Cannabis Canada, we reported that there had been no charges laid in relation to the December 16 police raid on Hemp BC and the Cannabis Cafe. Since that time, the police have laid charges against former owner Marc Emery for “promoting and selling vapourizers”, against one of Emery’s former employees for “selling vapourizers”, and against former Cafe manager Jana Razga for “promoting vapourizers”.

Since vapourizers are harm-reduction devices that separate THC from marijuana without releasing tar, the police have actually charged Emery and Razga with making marijuana smoking, which is already safer than coffee, even safer. Their next court dates are in early December.

Marc Emery has also been charged with trafficking in hash, and has been banned from the 300 block of West Hastings, where Hemp BC, the Cannabis Cafe and the Hemp BC Legal Assistance Centre are located.

The charges were laid by Vancouver police on March 13. American tourists had been caught at the border by US customs with a half-gram of hash in mid-January, and had told Customs agents that Emery had given it to them. They also had a photo of Emery sitting at their table with them.

US border guards forwarded the information to the local Vancouver Police, who waited two months, and then put out a warrant for Emery’s arrest. When Emery voluntarily turned himself in, and spent a night in jail. Police told him he would not be released unless he agreed to the conditions of bail, which specified that he not visit the block where his former businesses are located.

With Vancouver police rarely making arrests for trafficking in a gram of anything, it might seem highly unusual for Emery to have spent the night in jail on an unsubstantiated claim by foreign officials. But when seen as part of a persistent pattern of harassment and misuse of legal powers, it becomes much less surprising.

Constitution Violated

In 1994, Judge Ellen MacDonald of the Ontario Supreme Court ruled that Section 462.2 of the Criminal Code, as it pertains to “illicit drug literature”, was unconstitutional and invalid. Yet justices and judges in Ontario (and across Canada) continue to issue search and arrest warrants based on the invalid section, and police in Ontario continue to harass hemp store owners and seize literature like Cannabis Canada. The rest of Section 462.2, as it pertains to bongs and pipes, is still considered valid and legally enforceable across Canada.

Terry Tew of Hemp, Head and Sound: Store trashed, friends entrapped.Hemp, Head and Sound Silenced

On April 17, Terry Tew, owner of “Hemp, Head and Sound”, a hemp store in Hamilton, Ontario, was charged under 462.2 of the Criminal Code for selling illicit literature and instruments.

About eight Hamilton-Wentworth Regional Police officers conducted the raid. During the raid they ripped the ceiling out of the store, finger-printed all the glass, dumped out the garbages on the floor and took all the merchandise, including Cannabis Canada and High Times magazines.

After Tew and Doug, one of Tew’s employees, had been dragged off to a jail cell, police occupied Tew’s store. One officer put on a store t-shirt and began leafing through Tew’s address book, calling numbers at random. Tew heard about what happened later.

“The officer told one friend of mine that I had taken Doug to the hospital,” recounts Tew, “for a recurring headache caused by an accident last year. He said that Doug needed some marijuana to help him with the pain. When the guy showed up with an ounce of marijuana and seven grams of hash the police tackled him and threw him in jail too.”

Tew is, in his words, an “ex-gangster” and was only recently released from the penitentiary. He saw his hemp store as a way of earning an honest living and contributing to society. Now he is in jail at taxpayers’ expense. “I got out of the penitentiary the day before Christmas and did something with my life.”

His bank accounts were seized as “proceeds of crime,” making it impossible for him to defend himself or post bail.As of mid-May he was still in jail, his Section 462.2 charges being considered a violation of the conditions of his probation.

Buffy Blue in her store before the raid: charged with possession of 0.2 grams.Buffy’s Hemp Store Scuffed-Up

On March 20, Ontario Provincial Police and Stratford Police raided “Buffy’s”, a Stratford, Ontario hemp store. According to the search warrant, Buffy Blue, the store’s owner, was “promoting illicit drug use by offering for sale instruments and literature for illicit use contrary to 462.2.”

Police seized both Cannabis Canada and High Times magazines. Other drug media seized included “Hemp for Victory” video tapes, and Canadian government information about industrial hemp. Blue was held in a jail cell for 3 hours under the 462.2 charges.

Strangely, police also seized some sterilized, barbecued hemp seed. Sterilized hemp seeds have never been illegal. “They don’t know that hemp is legal,” said Blue, “that’s what astounded me.”

While searching Blue, police found about 0.2 grams of marijuana in a little baggy on her person. The police informed the media that Blue had been found in possession of “narcotics and paraphernalia”, and the media reported the same verbatim to the public, fuelling hysteria and speculation as to what kind of store Blue was running. Was she selling hard drugs?

No. Just enough crumbly, old grass to pack a roach. Weighed with the 0.3 gram bag, it was 0.5 grams. And that’s what police eventually charged Blue with, two weeks later, when her lawyer, Alan Young, came onto the scene, and it looked like the Section 462.2 charges wouldn’t stick.

Like Terry Tew of Head, Hemp and Sound, Blue saw her hemp store as a chance to turn her life around.

“Before I opened the store I was living in complete poverty. I was unemployed for a long time. When I opened this store I got a real break. I’m not on assistance anymore and I won’t be as long as I have this store.”

Members of the Cannabis Community, already united by the healing weed, have formed even stronger bonds in response to police oppression. Cannabis Canada magazine, Shakedown Street (a Grateful Dead shop in Kitchener), and the Church of the Universe all made donations of merchandise to help out Buffy in her time of need. Cannabis Canada also supported Hemp, Head and Sound with free magazines. Victory grows from standing together against immoral and unconstitutional laws.

Mike Spindloe in front of the Vinyl Exchange: fighting back vs 462.2.Charges Dropped Against Vinyl Exchange

It might seem that the largest inconvenience of charges for selling literature under section 462.2 is that a lawyer must be paid to get them dropped. But there is also the damage to the store owner’s reputation in the media, the loss of seized merchandise that is rarely returned, the financial hardship as a result having nothing for sale and, all too often, time spent in jail.

Mike Spindloe ? owner of The Vinyl Exchange, a hemp store in Saskatoon, Saskatchewan. ? had his store raided in May of 1997. Spindloe was charged with, among other things, selling literature like Cannabis Canada. But before the literature charges could come to court, they were dropped. Spindloe speculates that the police were worried that the law would be struck down, as it was in Ontario.

Spindloe must still defend himself against 462.2 charges for selling illicit instruments for drug use, which includes bongs and pipes. Spindloe has been granted a constitutional challenge and has prominent marijuana lawyer Alan Young to represent him. Mike Spindloe is confident about his chances for success.

“My case has the best chance of succeeding of any in which paraphernalia is involved. Police didn’t damage anything and they have left me alone since. I think the evidence Alan Young is bringing in is positive.”

Yet another cop unloading the CC office.Constitutional Challenges

Dangerous precedents are being set across the country for members of the cannabis community seeking a constitutional remedy for the sickness of prohibition and censorship. The courts are beginning to refuse the victims of drug-war oppression the right to make a constitutional appeal of their charges.

Harm Reduction Club Challenge

In British Columbia, David Malmo-Levine of the Harm Reduction Club finally had his day in court for charges of trafficking. Malmo-Levine sold marijuana to anyone who wanted it, under the condition that they take a pledge to use it responsibly.

In his decision, Judge Curtis ruled that Malmo-Levine should serve a sentence of one year in the community, during which time he is to refrain from smoking or dealing marijuana. As a condition of his release into the community, Judge Curtis also ordered that Malmo-Levine “find a job”.

David Malmo-Levine explains that, “Judge Curtis’ decision to deny me a constitutional challenge was based on the assumption that the Charter of Rights only protects fundamental personal decisions. But to prevent scapegoating and genocide from ever happening again, one’s right to make unimportant decisions, to make lifestyle decisions, to take acceptable risks must also be protected. The harm principle, in Section 7 of the Charter, guarantees the right to life, liberty and security of the person, and not to be deprived thereof. Anyone engaged in a relatively harmless activity should be protected. Even if it’s picking your nose or scratching your ass.”

Because Malmo-Levine’s case was in the BC Supreme Court, it set a negative precedent for further constitutional appeals in BC which are based on Section 7 of the Canadian Charter of Rights.

Randy Caine’s four year trial also finally ended on April 20. Caine was caught in possession of a roach in 1993, and began a lengthy constitutional challenge with lawyer John Conroy.

Citing the Malmo-Levine case, Judge Francine Howard ruled that the Charter of Rights did not protect marijuana smokers, and found Caine guilty. Judge Howard seemed reluctant to make the ruling, however, observing that she could not overturn the precedent set by the Malmo-Levine case, which occurred in a higher court.

In her decision, Judge Howard also stated that she could not overturn Canada’s marijuana laws because Parliament has the legal right to punish marijuana users. By citing parliamentary privileges, she was echoing the earlier decision made in the Chris Clay ruling by Justice John McCart, who decided that, “Easing of restrictions on the possession and use of marijuana is within the domain of the legislative branch of government,” and not within the jurisdiction of the courts.

Despite the cop-out guilty verdict, many aspects of Judge Howard’s decision were victories for the cannabis community.

“Countless Canadians,” said Judge Howard, “mostly adolescents and young adults, are being prosecuted in the `criminal’ courts, subjected to the threat of ? if not actual ? imprisonment, and branded with criminal records for engaging in an activity that is remarkably benign … [while]others are free to consume society’s drugs of choice, alcohol and tobacco, even though these drugs are known killers.”

According to Judge Howard, the only harm to society resulting from marijuana was the direct result of prohibition. After the trial, Randy Caine seemed content.

“I was very, very pleased with the verdict,” said Caine. “The judgement removed whatever integrity may have been left in their policies. It was a clear victory, at least in principle.”

In recognition of the inappropriateness of marijuana laws, Judge Howard awarded Randy Caine an absolute discharge. Which means no time served and no criminal record.

Hempware Challenge Denied

On April 14, Nycki Temple, owner of “Hempware” in St John’s Newfoundland, was convicted under section 462.2 as it applies to pipes and bongs. Like David Malmo-Levine, she had been denied a constitutional challenge. Like Caine, she was awarded an absolute discharge.

While denying defendants successful challenges to the constitutionality of marijuana prohibition, Judges are sending a clear message to legislators about marijuana laws. While neglecting their own duty to overturn unjust laws, they are at least agreeing that that it is time for politicians to do something.

McCart’s ruling against Chris Clay, Judge Howard’s decisions against Randy Caine and the ruling against Nycki Temple ? all involve the assumption that the courts cannot overturn unconstitutional laws, that such decisions are the sole jurisdiction of parliament.

In a recent ruling by the Supreme Court of Canada, however, Judge Iacobucci ordered all Canadian Courts to take responsibility for addressing unconstitutional laws, and to stop passing the buck to parliament. His ruling came in relation to laws violating the human rights of lesbians and gays in Alberta.

Those who claim that parliament is solely responsible for changing law, wrote Judge Iacobucci, “misunderstand what transpired when the Charter was passed by Parliament and the provinces in 1982, ?commanding’ judges to invalidate unconstitutional laws? The courts are to uphold the Constitution and have been expressly invited to perform that role by the Constitution.”

Judge Iacobucci described the relationship between the courts and parliament as a “dialogue”, in which the courts speak to parliament by invalidating unconstitutional laws, and the parliament speaks to the courts by passing new legislation.

While Judge Iacobucci’s ruling was made with regard to unfair treatment of minorities, it has obvious implications for those challenging marijuana laws in Supreme Courts.

Erehwon Going Somewhere

When we published our last issue, the three Kingston, Ontario hemp stores that had been raided in January were planning a joint constitutional challenge of 462.2. Since that time Erehwon, Western Rock and Off the Wall have decided to legally go their own ways. According to Bill Stevenson, owner of Erewhon, Western Rock is “basically out of business,” while Off the Wall has hired their own lawyer.

Stevenson has gone ahead with lawyer Alan Young in a constitutional challenge of the 462.2, as it applies to “illicit paraphernalia for drug use.” His court date is set for three days beginning September 22.

Another tool of oppression recently granted to police by our new drug laws, the Controlled Drugs and Substances Act, is entrapment. Police have only just begun warming up to this one, which was granted to them in 1995.

It was April 15, a Spring day in Montreal’s Little Italy, when a police SWAT team rushed into a small restaurant and held 120 customers hostage for a half-hour at gunpoint. Their target was a group of men to whom police undercover agents had just sold 5 kilograms of cocaine. Miami Vice right here in Canada. If police are short on busts one week, all they have to do is get some cool white flake out of the evidence room and scare up a buyer with some bargain-basement prices.

It is the way police set precedents. Use a new law against a target that the public is unlikely to empathize with, like cocaine dealers. Then, when the law has been enforced a few times without a challenge, police can use it however they like.

Hemp stores are also constantly under the threat of having their business licenses refused or revoked. Marc Emery was forced to sell his stores, Hemp BC and The Cannabis Caf?, in Vancouver, because he was facing numerous charges connected to police raids on his store over the years.

Police in Victoria requested that the city council revoke Ian Hunter’s business license for the Sacred Herb hemp store, because Ian had been convicted of possession and cultivation of marijuana. The city of Victoria, however, refused to comply with oppressive police tactics, and let Ian keep his store.

Holy Smoke, a hemp store in Nelson, BC, has faced similar difficulties. When the city tried to revoke their license, however, Holy Smoke fought back in court ? and won. So the city decided to raise the fee for businesses selling “smoking pipes known as bongs, hookahs or water pipes” from $120 to $1000.

Paul DeFelice, one of the store’s owners, remarks on how Holy Smoke scored another victory for hemp freedom when the city license inspector dropped by for a visit.

“We responded that to the best of our knowledge, the difference between bongs, hookahs and waterpipes and regular pipes is water and that none of our pipes contained any water. The City Inspector said that’s fine and that he would go back to City Hall and say that the bylaw was sufficiently vague ? that he could not say that we were indeed selling said items.”

Holy Smoke is still attending court for charges laid against them during a police raid.

Baby Indica: held overnight without food, water or diapers.Cultivating Irresponsible Policing

While police harass hemp-store owners regularly with unjust and unconstitutional laws, they also seem to have developed a taste for oppressing children, the elderly and the sick.

Infant in Jail

On the night of March 24, Edmonton police held a nine-month-old baby girl in jail overnight without laying any charges against her. They refused her food, water and diapers for her entire stay.

Police refused to allow her parents, who were also being held, to call the baby’s grandparents ? or even social services ? to remove the infant from jail. Police also denied the parents access to food and diapers for the child.

Kerry McDowell, the child’s mother, remembers how she became so dehydrated that her milk dried up. When she asked only for water, she was refused that as well.

Dean Kelly McDowell, the child’s father, recounts the events leading up to his family’s arrest. He, his wife Kelly, and his baby girl were leaving a friend’s place and had only gotten a few blocks when the lights of a cruiser flashed in his rear view mirror.

Dean & Kerry McDowell, with daughter Indica: A real difference since the arrest.Police tore Dean’s car apart and found a single marijuana plant. They then used the presence of the plant to leverage a search warrants for the house Dean had just left. According to the police report they found 107 plants at the home. Most of the “107 plants” were either dead or seedlings.

Dean’s biggest concern is the welfare of his child. “She hasn’t been the same since the arrest,” says Dean. “There’s a real difference in her. She’s not as happy.”

Every constitutional guarantee since the Magna Carta ? the ancient British constitution which forms the basis of our Canadian one ? has clearly stated that it is illegal to detain someone without charges, even infants. Even prisoners of war, under the Geneva Convention, are afforded basic living requirements like food and water.

If police can’t follow the most sacred of laws when dealing with a helpless infant, how can Canadian citizens be expected to respect them?

No Medicine for the Sick

It was a sunny summer day in Edmonton, Alberta, when Martin ? a sufferer of Multiple Sclerosis and a user of medical marijuana ? went into a local pawnshop.

He walked in the shop door and was brusquely informed by an undercover police officer that the pawnshop was closed for inspection right now, and to come back later to do his business.

As Martin turned to leave, the officer’s tone changed a little.

“You don’t have any stolen goods in that knapsack, do you?”

“No sir!” Martin responded at once.

“Then you don’t mind if I take a look?”

It is the usual way police get permission to search someone without just cause? they invent it. If Martin told the police officer he couldn’t look in Martin’s bag, the police officer would have “just cause” to search, under the pretence that Martin must be hiding something. The most appropriate response to a police officer playing this game is something like, “not if you have reasonable grounds to conduct a search, as described in law” or just “on what grounds?”

But Martin didn’t know his rights, and handed the police officer his bag, which contained an ounce of marijuana and a set of scales.

Then the police officer threatened him with a search warrant on his house, unless Martin brought the officer there and gave up the rest of his stash. Martin brought the officer to his home and dutifully turned over a half pound of bud.

The officer told Martin not to worry about the half pound, that it would be burned “as evidence”, and that Martin would not be charged for it. The half pound disappeared from the official record of the bust, leading us to speculate that it may have made a reappearance at the next police staff party.

Martin still faced charges for the half ounce in his bag, however, for which he received thirty days on a trafficking charge, spent four and half days in a remand centre, and performed three weeks of community service.

In the last week of March, Sonny Krumm was talking with a friend in the living room of his house in Terrace, BC, when police blasted through the door. They had received a tip about Krumm’s small 35-plant medical marijuana operation. Krumm had been growing the healing herb for both himself and his elderly mother, to alleviate the pain of arthritis.

Police told Krumm that they had to arrest everyone in the house, handcuff them, and bring them downtown. Krumm immediately thought of his elderly mother, who lay near death in the bedroom, too sick to even go to the doctor’s office.

Krumm pleaded with the police to leave his mother alone, informing them of her delicate condition. Police ordered him to show them every aspect of his operation. He complied immediately.

“I would have done anything to keep them away from my mother,” he recounts.
As Krumm was leading them out the door, he heard his mother talking to a police officer. They had disturbed her anyway.

“I heard her say she wouldn’t tell them nothing without a lawyer and that was the last I heard of her.”

His mother then collapsed and died of a massive heart attack. No charges have been laid against Krumm, although police returned to question him again. The RCMP and the coroner are investigating the death.

“I don’t understand,” says Sonny Krumm, “how can anyone tell you how to live?”
Or, for that matter, how to die.

Yet more cops waiting around in front of Hemp BC: your tax dollars at work.The end is now

While the war on drugs is being fought in smoky trenches and on hemp-covered hills, peace creeps up in the minds of all who use marijuana. The question we all ask is, “How much longer?”

The courts can’t abdicate the responsibility of changing the laws forever. Even the Supreme Court of Canada recognizes the error of deferring necessary changes to Parliament. Politicians are pushing for change, too. Right now, there are politicians in every political party advocating the end of marijuana prohibition.

Still, the most important agent of change continues to be the average citizen of Canada’s cannabis culture. Those who smoke marijuana recreationally. Those who smoke it medicinally. Those who smoke it sacramentally. And even those who just smoke it and don’t ask why. Write the government, fight for your rights in court, support your local hemp store, and take part in the battle to free marijuana and cannabis culture.Yet more cops waiting around in front of Hemp BC: your tax dollars at work.

Contact Information

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